United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
proceeding in propria persona and in forma pauperis, brings
this civil action. Pending before the court are
defendants' motions to dismiss (Docs. 14, 50). The
hearing on the first motion to dismiss was taken off calendar
and submitted on the records and briefs pursuant to Local
Rule 230(c), as no opposition to the motion was filed. A
hearing on the second motion to dismiss was held on October
10, 2015, before the undersigned in Redding, California.
Deputy Attorney General Alberto Gonzalez appeared
telephonically; plaintiff appeared in pro se. Attorney Philip
B. Price also appeared in person.
originally filed this action in September 2011. The complaint
was dismissed with leave to amend, and an amended complaint
was filed January 20, 2012 (Doc. 7). The amended complaint
named both California Highway Patrol officers (State
defendants) and Siskiyou County Sheriff deputies (County
defendants). Service on the individual officers was
authorized and completed. The County defendants filed a
motion to dismiss on August 24, 2012. Prior to the court
ruling on the motion to dismiss, the State defendants (by
special appearance) and plaintiff entered into a stipulation
to stay the proceedings (joined by the County defendants),
which was granted, based on an underlying state court
proceeding related to the claims raised in this case. In
April 2015, the stay was lifted as the underlying state
proceedings concluded. A status conference was held on May
27, 2015. The County defendants were provided an opportunity
to file a renewed motion to dismiss, which they chose not to
do, relying instead on the pending motion to dismiss.
Plaintiff had previously failed to file a timely opposition
to the County defendants' motion; however, he did file a
late opposition which the undersigned has read and
considered. The State defendants then filed their pending
motion to dismiss, to which plaintiff filed a timely
opposition, and the matter was heard by the court on October
MOTIONS TO DISMISS
State and County defendants each filed separate motions to
dismiss. The underlying issue in the motions to dismiss are
essentially the same, and the same analysis is applicable to
both. The undersigned will therefore address the motions
defendants bring their motions to dismiss on the grounds that
plaintiff's complaint fails to state a claim upon which
relief can be granted, the court lacks jurisdiction over the
pendent state law claims, the officers are entitled to
qualified immunity, there was no constitutional violation to
support plaintiff's claims, plaintiff failed to comply
with the California Government Claims Act, and other claims
are not well plead. The defendants also argue the state law
claims should be stricken, and in the alternative, for a more
definite statement. The later of these arguments are
unnecessary based on the discussion below.
opposition, plaintiff argues that he intends to prove during
trial that the defendants violated his Constitutional rights.
As to the qualified immunity, plaintiff argues that he is an
approved Compassionate Use Act (CUA) user, an argument that
does not address the application of qualified immunity. He
also argues that his property was ordered to be returned by
the state court, but it has not been returned.
considering a motion to dismiss, the court must accept all
allegations of material fact in the complaint as true.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
The court must also construe the alleged facts in the light
most favorable to the plaintiff. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); see also Hosp.
Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740
(1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th
Cir. 1994) (per curiam). All ambiguities or doubts must also
be resolved in the plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However, legally
conclusory statements, not supported by actual factual
allegations, need not be accepted. See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro
se pleadings are held to a less stringent standard than those
drafted by lawyers. See Haines v. Kerner, 404 U.S.
519, 520 (1972). "Although a pro se litigant ... may be
entitled to great leeway when the court construes his
pleadings, those pleadings nonetheless must meet some minimum
threshold in providing a defendant with notice of what it is
that it allegedly did wrong." Brazil v. United
States Dept of Navy, 66 F.3d 193, 199 (9th Cir. 1995).
8(a)(2) requires only "a short and plain statement of
the claim showing that the pleader is entitled to
relief" in order to "give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests." Bell Atl. Corp v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, in order to survive dismissal for
failure to state a claim under Rule 12(b)(6), a complaint
must contain more than "a formulaic recitation of the
elements of a cause of action;" it must contain factual
allegations sufficient "to raise a right to relief above
the speculative level." Id. at 555-56. The
complaint must contain "enough facts to state a claim to
relief that is plausible on its face." Id. at
570. "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 129 S.Ct. at 1949.
"The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully." Id. (quoting Twombly, 550
U.S. at 556). "Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility for entitlement to relief."
Id. (quoting Twombly, 550 U.S. at 557).
deciding a Rule 12(b)(6) motion, the court generally may not
consider materials outside the complaint and pleadings.
See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir.
1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.
1994). The court may, however, consider: (1) documents whose
contents are alleged in or attached to the complaint and
whose authenticity no party questions, see Branch,
14 F.3d at 454; (2) documents whose authenticity is not in
question, and upon which the complaint necessarily relies,
but which are not attached to the complaint, see Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
and (3) documents and materials of which the court may take
judicial notice, see Barron v. Reich, 13 F.3d 1370,
1377 (9th Cir. 1994).
leave to amend must be granted "[u]nless it is
absolutely clear that no amendment can cure the
defects." Lucas v. Dep't of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (per curiam); see also Lopez v.
Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).